THE SYSTEM DIDN'T WORK

James Bowman

March 1, 1999, Vol. 4, No. 23

ON ONE THING ABOUT our otherwise deeply polarizing impeachment experience nearly everyone agreed: "The System worked." As Laurence H. Tribe of Harvard put it, "the impeachment drama will have yielded few heroes -- except the Constitution's Framers, whose wisdom that drama will again have vindicated." In this opinion he was at one with former senator Sam Nunn, who said: "I think all the institutions involved have looked bad except the Constitution of the United States. I think the Constitution and the Founding Fathers have come through with great blue ribbons . . . because the Constitution has worked." Senator Robert Byrd went even further: "The Constitution is like the Bible," he said. "It is the political bible in statecraft."

This is not, to say the least of it, a controversial opinion. Yet there is also a sense in which the Constitution was itself responsible for the whole impeachment fiasco. The Republicans felt constrained to proceed with the impeachment of the president, though it was clear to every one of them that doing so was, to put it mildly, not in their political interests. And why? Because they felt that the Constitution required it. The Democrats charged over and over again that the Republicans, by exaggerating a case of sexual misbehavior into an impeachable offense, were in fact undermining the Constitution. Because both sides cast themselves in the role of defender of the Constitution, neither could retreat -- let alone admit that it was the sacrosanct Constitution itself which was the source of their dilemma.

Traditional parliamentary democracies are founded on honor. If a leader loses the trust or confidence of a majority of his colleagues in the legislature, he is expected to resign. There is no law telling him what he can and cannot do in power, nor any legal provision for his removal if he should exceed what is deemed permissible. There is only the understanding that a majority of legislators have faith in his good judgment and that he will leave office if this should cease to be the case. But the Founding Fathers were so worried about what they thought of as the "tyranny" of the British parliament that they built into their new system an elaborate network of legal safeguards -- the famous "checks and balances" -- as well as a schedule of protections in the Bill of Rights that even legislative majorities could not overrule.

There was also another reason for formalizing what had once been a matter of honor and trust. The executive could not, in the new American system, dissolve the legislature and call new elections. Because the elections were decreed on a fixed timetable -- every two years for congressmen, every four years for presidents, and, later, every six years for senators on the first Tuesday after the first Monday in November in even-numbered years -- the constitutional engineers had to build in a legal means of getting rid of the executive between elections. One need be no apologist for Bill Clinton to see impeachment as dubious for anything less than major crimes -- which is why the cumbersome mechanism of impeachment has only been tried twice in over 200 years and why, both times, it has failed.

The Founders wanted to come as close as possible to obviating the need for trust. Perhaps it is time for us to ask ourselves if it can, after all, be done. A lot of the same self-congratulation about how "the System" was supposed to have "worked" was heard at the time of Watergate. But the system did not work. Richard Nixon, who was one of the few American presidents widely read in the workings of parliamentary systems and who had a strong sense of personal shame, resigned like a parliamentary executive when he lost the support of his party in Congress. True, he could see impeachment on the horizon, but if, like Bill Clinton, he had seized every legal means at his disposal to stave it off, who knows how much longer he might have stayed in office and continued by his very presence to paralyze the government?

Bill Clinton has managed to maintain his grip on power by exploiting every advantage the law supplies. Although we would not wish to do away with these legal safeguards, such a means of remaining in office, even if not prosecutable, is surely an abuse of them. In fact, it is probable that large majorities of both houses of Congress have lost confidence in the president's good judgment in power, but a smaller majority had no stomach for branding him a criminal and disgracing him for life over what began as a private vice. His resistance to those defenders of the Constitution who insisted on the rigorous application of the law -- in this case a sexual harassment law enacted at Clinton's own insistence -- was defensible, though his continuance in power was not. But he could argue that the Constitution admitted of no other option than clinging to office in order to defend himself against the operation of a foolish law.

It is said that America's is a government of laws, not men, and that this is one of the things Americans have most to be proud of. But governments inevitably consist of both laws and men, and we do not exempt ourselves from the necessity to balance the two by the dream, derived from that of the Founding Fathers, that we can write laws to solve all human problems. T. S. Eliot once observed that the socialist project was to design a system so perfect that no one would have to be good. The socialists were anticipated by the Founders of the American Republic, whose aim was to design a system so well that honor would not have to be relied on. But, it turns out, we have to rely on it still.

James Bowman is American editor of the Times Literary Supplement of London.